In recent posts I’ve discussed the need for nullification against sweeping vaccination mandates, and discussed the impact on certain employers if vaccination mandates are successfully defeated. Since then, the courts have been abuzz with activity on this topic and, I believe, too much attention has been focused on the courts, rather than what should be done at the state and local levels to protect liberty.
Private Mandates
Within libertarian circles there are debates about whether private employers can mandate COVID vaccinations or vaccinations of any sort. One proper argument based on self-ownership is that employees and employers should be allowed enter into any mutually-beneficial arrangements that they like. If an employer wishes to make certain injections a condition of employment and the employee is willing to do so, then it should be allowed. If the employee doesn’t like the conditions of their employment they are free to seek other employment or start their own competing businesses. In a free market if the requirement is seen as invasive or onerous, then employers would have to raise the rates they are willing to pay workers and may also have difficulties in finding willing employees.
This follows reason and is a great theory, but the problem with the current environment is that it is not a free market for a number of reasons. The key distortion is that government is back-stopping liability for both the pharmaceutical companies and the employers. If the employee dies or sustains lifelong injuries for what they were told was a “safe” treatment, nobody will be held responsible, while the employee will carry the burden.
Regardless of what one believes a private party should be allowed to do, few Libertarians would argue that governments should have the ability to mandate injections as a condition of employment or otherwise.
Biden Mandate for Employers
The mandates rolled out by President Biden in September covered Federal employees (including the military), Federal contractors, and an OSHA mandate that would effect all employers with 100 or more employees. It took OSHA quite a while to roll out rules for this mandate, but Emergency Temporary Standard (ETS) was finally published on the 5th of November 2021.
Court Rulings
On the very next day, the 6th of November 2021, the 5th Circuit Court of Appeals stayed the ETS while judicial review continued. The 5th Circuit issued an opinion on the 12th of November further enforcing the stay and stating why the ETS wouldn’t likely survive the judicial process.
So, many Americans breathed a sigh of relief that liberty would prevail. Many large businesses rolled back their internal mandates, distancing themselves from them as quickly as possible. People in general ceased active pursuit of other measures to defend their liberty. Never mind that there was nothing final and, as Thomas Jefferson stated:
The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.
Thomas Jefferson, letter to Thomas Ritchie, 1820
Then this past Friday, the 17 of December, the 6th Circuit Court of Appeals delivered an early Christmas gift to hardworking Americans everywhere (where’s my sarcasm font?), as they dissolved the stay that the 5th Circuit had issued. As Jefferson comments suggest they would, these judges chose arguments for increasing federal power where no such constitutional powers have been granted. Oh, the shame of it all, these judges issued their opinion right here in Ohio! The 6th Circuit convenes in Cincinnati.
Within hours 27 states were working to appeal the 6th Circuit’s ruling and the judicial wrangling continues.
Further State Actions
Working through the judiciary and filing an appeal with the US Supreme Court is an important action for the states to take. However, the legislatures of these states should not be relying on federal courts to protect the rights of their citizens.
As the 10th Amendment Center’s Mike Maharrey observes in his article Feds Can’t Enforce Vaccine Mandate Without “A Lot of Help,” OSHA would have to rely on the cooperation of state governments to enforce their ETS. As the 10th Amandment Center often states “partnerships and ‘team efforts’ don’t work well when half the team quits.”
We’ve already established that these federal mandates are unconstitutional and, hence, a usurpation of power belonging to the people and the states. The 10th Amendment applies and this should be nullified.
The bills designed to stop mandates in Ohio are really focused on stopping employers from mandating vaccines. This puts employers in the middle of a nasty battle between the state and the federal government. Instead, state legislation outlawing the enforcement of such mandates would be the rightful remedy.